Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services

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National Legal Aid and Defender Association

GUIDELINES FOR NEGOTIATING AND AWARDING GOVERNMENTAL
CONTRACTS FOR CRIMINAL DEFENSE SERVICES

Benjamin Lerner, President

J. Vincent Aprile II, Chair
NLADA Defender Committee

Alex Landon, Chair
Contracts Subcommittee of the NLADA Defender

Malcolm C. Young, NLADA Staff Attorney
Reporter Adopted by the NLADA Defender committee
and Board of Directors, December 3 and 4, 1984.

Table of Contents

Table of Contents
Preamble
Introduction

History of these Guidelines

Part I: "Contracting Authority and "Contractor"

Guideline I-1: Contracting Authority

Guideline I-2: Contractor

Part II: Policy Board

Guideline II-1: Purpose

Guideline II-2: Members

Guideline IT-3: Duties

Part III: Elements of a Contract for Those Unable to Afford Defense Services

Guideline III-1: Parties

Guideline III-2: Scope of Contract

Guideline III-3: Determination of Eligibility

Guideline III-4: Term of Contract

Guideline III-5: Definition of "Good Cause"

Guideline III-6: Allowable Caseloads

Guideline III-7: Minimum Professional Qualifications

Guideline III-8: Support Staff and Forensic Experts

Guideline III-9: Investigators

Guideline III-10: Compensation

Guideline III-11: Extraordinary Compensation

Guideline III-12: Case- and work-Overload

Guideline III-13: Conflicts of Interest

Guideline III-14: Payment

Guideline III-15: Financial Records

Guideline III-16: Supervision and Evaluation

Guideline III-17: Professional Development

Guideline III-18: Standards of Representation

Guideline III-l9: Confidentiality

Guideline III-20: Insurance

Guideline III-21: Retention of Files

Guideline III-22: Management System

Guideline III-23: Duration of Representation

Part IV: Contracting Procedures

Guideline IV-1: Role of the Contracting Authority

Guideline IV-2: Role of the Policy Board

Guideline IV-3: Awarding the Contract

Bibliography of Materials Cited

Preamble

Contracts for legal defense for persons unable to afford counsel should be awarded only when the contractors have complied with these guidelines. No contract should be awarded on the basis of cost alone. The contracting authority of the policy board to which it has delegated authority shall determine whether the proposal of a potential contractor will meet the requirements of the guidelines.

These Guidelines are not intended to condone the use of contract public defense services, but rather to govern the negotiation and award of public defense contracts once the decision to utilize such contracts has already been made.

GUIDELINES FOR NEGOTIATING AND AWARDING GOVERNMENTAL
CONTRACTS FOR CRIMINAL DEFENSE SERVICES
Introduction

These Guidelines represent the combined efforts of defender members of the National Legal Aid and Defender Association, the Defender Committee and the Defender Division staff to address the problems of providing by competitively bid contract legal representation for poor persons accused of criminal offenses. Some competitively bid contract defense programs have proven neither as economical as hoped nor as satisfactory in providing good representation as the federal and state constitutions may require. Nevertheless some state and local governments are establishing competitively bid contract defense programs, in some instances as the sole means of providing representation to poor defendants. These Guidelines are intended to help local and state governments and agencies which choose to establish contract defense programs and which choose to award contracts on a competitive basis to do so constitutionally, and to help insure that efficient contract programs operate well for the government, the courts and the citizens they serve.

These Guidelines focus on the contracting process. Contracts written, negotiated and entered into in accordance with these Guidelines and with consideration of the issues these Guidelines raise should, by their terms, help ensure that high quality service will be provided to those defendants unable to afford counsel. Such contracts should also provide to the criminal justice system effective defense services which comport with government's other interests in efficiency, economy and accountability. The Guidelines are intended to be a practical document. Public agencies or officials charged with designing contract programs for indigent criminal defense may use these Guidelines to help avoid problems frequently encountered and to design, negotiate and award contracts which will encourage, rather than discourage, zealous, effective and efficient representation of indigent accused.

There are now several published standards which spell out the objectives and minimum requirements for public defender and assigned counsel programs and for attorneys engaged in private criminal justice. These include the American Bar Association's Standards for Criminal Justice (Second Edition 1980), NLADA'S Standards for Defense Services (1976), the Report of the National Study Commission an Defense Services, Guidelines for Legal Defense Systems in the United States (1976), and the volume of standards published by the National Advisory Commission on Criminal Justice Standards and Goals titled Courts (1973). These standards do not directly address the unique characteristics or special problems of competitively bid contract defense programs. However, they do speak to the quality of defense services generally. Their provisions are as relevant to attorneys practicing under contract as to assigned counsel or attorneys in full-time public defender offices. Where such standards are in any way relevant or useful to competitive bid contract defense systems these Guidelines refer to them as "Related Standards." But while these Guidelines intend to reflect existing standards and to help implement them in the context of competitively bid contract defense programs, they do not restate them and are not a substitute for them.

These Guidelines draw upon several published and unpublished sources, including the various Standards referred to above. The text of, and comments to, these Guidelines contain short citations to these sources. Full citations are listed in Appendix A (Bibliography of Materials Cited) behind the short citation form by which they are referred in the text.

HISTORY OF THESE STANDARDS

Competitively bid contract defense systems are relatively new. The authorities and standards governing systems used to provide criminal defense services either neglect, or condemn, contract systems, particularly competitively bid contract systems. See Wilson, Contract Bid Programs. Competitively bid contract systems have provoked a great deal of controversy and concern. Wilson, id. As a result, the National Legal Aid and Defender Association began to consider the issues that arose when jurisdictions elected to provide criminal defense services to poor persons through competitively bid contracts with lawyers or legal organizations. Ultimately, the Association produced these Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, but only after consideration, study and deliberation.

The foundation for the Guidelines as they appear here was laid by a subcommittee of the Defender Committee of the NLADA during the Association's meetings in Washington, D.C., an May 17, 1980. Designated originally as the Subcommittee on Accreditation, over the next two years this group evolved into the Subcommittee on Contracts and Accreditation. It met during NLADA's quarterly meetings and slowly became prominent in the Defender Committee's agenda.

On December 17, 1981, the subcommittee assigned to itself the task of reviewing standards and guidelines of the NLADA, ABA and the National Advisory Commission on Criminal Justice Standards and Goals (NAC), and to consider an appropriate response to contract bid programs. In the course of its deliberation, the subcommittee noted that several counties had referred the question of establishing contract systems to local bar associations. Jonathan Gradess, Executive Director of the New York State Defenders Association, proposed preparing information about contract defense programs which would simultaneously warn county governments of the dangers of contract bid programs and assist them and local bar groups in assuring cost effective quality representation. The Committee and NLADA staff began a serious effort to review existing standards and collect and publish information about contract defense programs.

At a meeting in Washington, D.C. in May 1982 the Subcommittee on Contracts and Accreditation focused on identifying the issues and problems associated with contract programs and continued to collect and assimilate information. The subcommittee decided to prepare and promulgate minimum standards for letting defense services contracts. On the same day, the NLADA Defender Committee considered the content and impact of Richard J. Wilson's article, Contract Bid Programs, supra, and passed the following resolution (prefatory "whereas" clauses not reprinted):

BE IT THEREFORE RESOLVED:

THAT the National Legal Aid and Defender Association opposes the continued use and further proliferation of contracts which do not comply with the ABA Code of Professional Responsibility or nationally recognized standards on providing indigent defense services; and
. THAT the National Legal Aid and Defender Association strongly urges that, if used, such contracts must insure quality delivery in compliance with the constitutional mandate of effective counsel, in addition to the cost efficiency of such services.

At meetings in Atlanta on July 30, 1982 the Subcommittee on Contracts and Accreditation again proposed preparation of guidelines for counties which were considering contract defense systems and requested consideration of the matter at NLADA's Annual Conference. The Defender Committee considered for the first time the "Discussion Draft, Standards for Contract Defense Systems" prepared by subcommittee chair Nancy Albert-Goldberg and based upon discussions and research undertaken over the preceding two years. At the Annual Conference in Boston in November 1982, the subcommittee adopted the Goldberg Discussion Draft, with several amendments, and submitted the Draft to the Defender Committee for approval. However, due to the press of other business, the Defender Committee deferred action on the Goldberg draft. In early 1983, Alex Landon, the new chair of the Subcommittee on Contracts and Accreditation, prepared a new draft, circulated it, and re-submitted it after staff review to the Committee. On September 19, 1983 in Philadelphia, the Subcommittee on Contracts and Accreditation and the NLADA Defender Division staff submitted the Proposed Draft, Guidelines for Negotiating and Awarding Indigent Defense Contracts for review and action to the Defender Committee. The Defender Committee made several minor changes in the text of the Proposed Draft, directed addition of one additional Guideline, and approved the Proposed Draft for circulation and comment before submission to NLADA's Board of Directors.

Within two months of the September, 1983 meetings, the Defender Division printed and circulated a Tentative Draft of these Guidelines dated 19 September, 1983. Distribution included the Defender Committee and Board, persons who had contributed to or expressed an interest in the Guidelines, and various organizations including the staff of the American Bar Association's Criminal Justice Section. The Defender Division staff received comments from several persons and circulated these to the Sub-committee on Contracts and Accreditation. As a result of those comments, several changes to the text and one additional Guideline were proposed to the Defender Committee at its meetings in Washington on 24 February 1984. The Defender Committee considered the changes and additions and voted to approve and publish the Guidelines. The Board of the National Legal Aid and Defender Association formally approved the Guidelines by mail ballot following its meeting on 25 February, 1984.

The guidelines are designed to protect the integrity of systems which provide constitutionally required public defense services. They were created to protect the rights of defendants and taxpayers and to encourage zealous and effective representation of the poor. The guidelines have already been utilized by the Supreme Court of Arizona to condemn a constitutionally defective and fundamentally inadequate competitively bid contract system. citation to Arizona v Joe Smith.

These guidelines must therefore be viewed for what they are. They are simultaneously designed to respond to penny-wise, pound-foolish actions taken by good governments wishing to cut costs at the expense of quality and to help assure for good governments an approach to providing quality service which will prevent municipal liability.

As stated in the preamble, infra, the guidelines neither endorse nor support competitively bid contract defense systems. Rather, they are an effort designed to provide assurance that minimum constitutional requirements are met when local governments choose to serve poor clients through a contract defense system.

PART I: DEFINITIONS: "CONTRACTING AUTHORITY" AND "CONTRACTOR"

Guideline I-1: Contracting Authority. As used in these Guidelines, the Contracting Authority is the public office, officer, or agency which has the authority to prepare bids, negotiate, or otherwise conclude a contract and to obligate funds for those unable to afford criminal defense services.

Related Standards: None

Comment: The Contracting Authority may be a court, court administrator, legislature or legislative council, or executive officer, but it must be the party with authority to enter into a contract and to obligate public funds under contractual terms.

Guideline 1-2: Contractor. As defined in these Guidelines, the Contractor is an attorney, law firm, professional association, lawyer's association, law school, bar association or non-profit organization which enters into, or is eligible to enter into, a competitive bidding or open negotiating process with the Contracting Authority for the purpose of concluding a contract to provide public defense services to those unable to afford counsel.

Related Standards: None.

Comments: The Contractor may be one or more of several persons or organizations (Spangenberg, Contract Systems, p. 7). This definition emphasizes the relevancy of these Guidelines to any open or competitive contract bidding or letting process. A Contractor may be a party which is eligible to, but has not, entered into an agreement to provide defense services. Accordingly, when these Guidelines speak of Contractor, any persons or organizations who may bid or propose to become a Contractor are by this definition included.

PART II: POLICY BOARD

Guideline II-1: Purposes. The Contracting Authority should appoint a Policy Board if it has appointment powers, or should request that an appropriate authority appoint a Policy Board if it lacks the power of appointment itself. Policy Boards should be constituted to ensure the independence of the Contractor and to provide the Contracting Authority with expertise and support in such matters as criminal defense functions, determination of attorneys fees and salary levels, determination of reasonable caseload standards, interpretation of standards governing the provision of public defense services, response to community and client concerns, and implementation of the contract defense system.

Comments: Policy Boards are widely recommended in the context of contract defense under one or another name (Guidelines - Seattle; Spangenberg, Contract Systems, p. 15). A Policy Board can be created from an existing public agency, as appears the case in the Model Contract - North Dakota, pp. 48, 41.

Guideline II-2: Members. The Policy Board should consist of from three to thirteen members, depending upon the size of the community, the number of identifiable factions or components of the client population, and judgments as to which groups should be represented.

Policy Board members should be appointed using the following criteria:

(b) Policy Board members should represent a diversity of factions in order to insure insulation from partisan politics.

(d) Private organizations directly serving the poor should be a source for Board members.

(e) Organizations concerned with the problems of the client community should be represented on the Policy Board.

(f) A majority of persons on the Board should be practicing attorneys.

(g) The Policy Board should not include judges, prosecutors, or law enforcement officials.

Members of the Policy Board should serve staggered terms in order to ensure continuity and to avoid upheaval.

Comment: Previous drafts of this Guideline described a Policy of nine to thirteen members. Those numbers came from Standard 2.10 of the NSCDS which describe a special defender commission with more comprehensive responsibilities than a Policy Board to a contracts system need assume. A Policy Board of fewer numbers nay be less cumbersome and more appropriate for smaller jurisdictions or smaller contract programs such as might be established to handle overflow or conflict cases from a public defender office. Particulars of a Board may vary. For instance, the Guidelines - Seattle recommends a Board whose members are appointed by different organizations or political entities.

A recent article describes the membership of a Policy Board ("review committee") by the functional objectives of the group:

"Composition of the review committee (Policy Board) should be broad enough to guard the funding authority's need for accountability, protect the interest of the bench and bar, and guarantee the indigent accused their constitutional protections. Committee (Board) members might include:

private criminal practitioners;
state or local bar association officials;
law school professors;
representatives of citizens' groups interested in the criminal justice system.

In some jurisdictions, judges and local prosecutors are responsible for the above functions. There may well be important legal issues that dictate these groups' participation, but it is preferable that neither be in control of the process because there is a great danger of the appearance of conflict of interest. On the other hand, a broadly representative review committee with personal knowledge of the workings of the criminal justice system and of its individual practitioners should be well qualified to establish and apply impartial standards to plan and implement changes in the system." (Spangenberg, Contract Systems, p. 15)

Guideline II-3: Duties. Duties of the Policy Board shall be to:

(b) advise the Contracting Authority on fee schedules, rate of reimbursement, prevailing attorneys fees and other issues related to the cost of public defense services.

(d) select the contract defender or contract defender to whom contract will be let, if not retained by the Contracting Authority, and

(e) establish and apply minimum qualifications for lawyers whose services are provided by the Contractor, if this function is not assigned to the Contractor as a condition of the contract.

Related Standards:

Comment: This guideline states the various duties assigned to policy Boards by those who have considered their role in contract defense systems. See: Landon Draft, Standards 8 and 10; Spangenberg, Contract Systems, p. 15; Guidelines - Seattle, pp. 1-2.

This guideline explicitly recognizes that the duties of a Policy Board will vary depending upon the size of the jurisdiction and contract defense program, the willingness of the Contracting Authority to delegate certain duties, the capability of the Contractor to supervise and monitor the professional work of its own attorneys, and the purposes for which a Policy Board was established. (See Guideline II-1). This guideline recommends that a Policy Board perform the duties specified in subparagraphs (a) and (b) at the least. The duties listed in (c), (d) and (e) should also be the responsibility of the Policy Board but are more frequently assigned elsewhere.

PART III: ELEMENTS OF A CONTRACT FOR PUBLIC DEFENSE SERVICES

Each of the following Guidelines should be included in a contract for public defense services. If contracts are to be awarded through some kind of bidding, RFP, or other competition, these should serve as the basis for the RFP or bidding document. Contracts should be awarded on the basis of the completeness and adequacy of a Contractor's consideration of these Guidelines.

Guideline III-1: Parties. The contract should identify the Contracting Authority, the Contractor, and any other public or private person, agencies or organizations which are party to the contract.

Comment: An RFP or bidding document should specify all organizations which are eligible for consideration as a Contractor from among those listed in Guideline I-2. (See Guideline 1-2, above.)

Guideline III-2: Scope of Contract. The contract should specify the categories of cases in which the Contractor is to provide services.

Comment: Contract defense services can be provided to a wide or a narrow range of cases, depending upon the scope of service provided by public defenders, other Contractors, or assigned counsel. Categories of cases which may be covered by a contract include: death penalty cases, felonies, misdemeanors, juvenile cases, appeals, mental health matters, post-conviction cases, extradition cases, conflict cases, "overload" cases from a public defender office or assigned counsel plan, cases in a geographical area, special legal counseling, one or more sub-categories of the above, some combination of the above, or a certain number or percentage of cases in one or more categories. (See: Spangenberg: Contract Systems, p. 7; Model Contract - North Dakota, pp. 42-43.) However, contracts should not be written or let so as to interfere with either a Contractor's or any other defense attorney's obligation to represent any defendant through final judgment in the trial court. For example, a contract system should not result in a defendant being represented by one attorney at a preliminary hearing and another at a trial in the same case, or by one attorney at a bench trial and other at a jury trial de novo which is the defendant's right in the same case (i.e., as in the states of Massachusetts. See, ABA Standard 5-5.2.

Guideline III-3: Determination of Eligibility. The Contract should specify the procedure by which client financial eligibility is to be determined and the person, officer or agency responsible for making the determination initially and at subsequent review proceedings. The contract should either incorporate eligibility standards by reference to those in accepted use or it should specify the eligibility standard applicable in all cases handled by the Contractor. The contract should provide that any information or statements of the defendant obtained in the process of determining eligibility shall be considered confidential and privileged.

Related Standards:

Comment: Procedures for determining eligibility vary and there is considerable disagreement about the defense attorney's role in the process. This Guideline does not recommend one method over another, but recommends that procedures and standards for eligibility be stated clearly in the contract.

Guideline III-4: Term of Contract. Contracts for legal defense services should be awarded for at least two year terms. Removal of the Contractor short of the agreed term should be for good cause only.

Comment: For purposes of establishing independence and stability, a two year contract period is an absolute minimum, although many contracts are now only a year in duration. The ABA Standards adopt no recommended term, but do acknowledge the four - six year term for chief defenders recommended by NSCDS (see, Commentary to ABA Standard 5-3.1). The two-year minimum specified here is identical to recommendations in earlier drafts and of the California Bar Subcommittee, Guideline 1, p. 3. The NAC recommends a four-year term for chief public defenders.

This Guideline does not abrogate the Contractor's or an individual attorney's responsibility to complete any and all cases in which representation has begun under terms of the contract. See Guideline III-22, below.

Guideline III-5: Definition of "Good Cause." The Contract shall define "good cause" such as is required for removal of the Contractor (Guideline III-4) as: failure by the Contractor to comply with the terms of the contract to an extent that the delivery of services to clients by the Contractor is impaired or rendered impossible, or a willful disregard by the Contractor of the rights and best interests of clients under this contract such as leaves them impaired. The individual actions of the Contractor or any one attorney taken in connection with one case alone, shall not necessarily constitute "good cause" for removal.

Related Standards:

Comment: Standards governing removal of a public defender or the administration of an assigned counsel plan include permanent physical or mental disability among conditions amounting to "good cause." Since the Contractor may be a large firm or number of lawyers, the physical or mental condition of any one person may be irrelevant in the context of a contract, or it may be a matter covered by existing public or private policy regulations. Consequently, "good cause" is not here defined to include physical or mental disability. A Contracting Authority may include physical or mental disability in a definition of "good cause" as appropriate to the situation.

The intent of this section, which is a change from previous drafts, was to assure the Contractor independence and stability by insulating it against arbitrary removal or termination. For that reason, no course of action in any single case can, or should, threaten the contractual relationship. Both Contractor and Contracting Authority should remember that the power to discipline attorneys for conduct or inaction in any case lies in appropriate agencies of the state bar or judiciary. There is no reason why attorneys who represent persons unable to afford counsel under terms of a contract should be treated differently. However, these Guidelines do contemplate that a Contracting Authority has recourse against a Contractor for any breach of the terms of a contract legally entered into. Such recourse might include money damages, a reduction in the price of services, or demand for specific performance.

These Guidelines differ from most of the Related Standards cited above in one respect. The Guidelines do not contemplate that the Policy Board (see Part II, above) shall arbitrate or provide a forum or due process hearing to the Contractor in the event of a dispute between the Contractor and Contracting Authority. They assume that, unlike a constitutionally or statutorily created office such as the NSCDS and NAC were contemplating, a person or corporation who provides services under contract has recourse in the civil courts.

Guideline III-6: Allowable Caseloads. The contract should specify a maximum allowable caseload for each full-time attorney, or equivalent, who handles cases through the contract. Caseloads should allow each lawyer to give every client the time and effort necessary to provide effective representation.

Attorneys employed less than full-time on handling a mix of cases should handle a proportional caseload.

Comment: Under no circumstances should maximum allowable caseloads for each full-time attorney exceed the following: (a) 150 felonies per attorney per year; or (b) 300 misdemeanors per attorney per year; or (c) 200 juvenile cases per attorney per year; or (d) 200 mental commitments cases per attorney per year; or (e) 25 appeals to appellate court hearing a case on the record and briefs per attorney per year. The maximum allowable caseloads specified here are those recommended in previous drafts and in Guidelines - Seattle, p. 3. Allowable caseloads must necessarily be lower in many jurisdictions. Where contracts are bid, the Contracting Authority should require that bidders explain any staffing, salary, or assignment plan which would cause them to exceed these maximum allowable caseloads.

Guideline III-7: Minimum Professional Qualifications. The Contract should specify minimum qualifications for staff lawyers. These qualifications should be developed by the Advisory Board which screens contract applications. If defense services are to be provided in more than one category of cases, the contract should specify different minimum qualifications for each category of cases for which the Contractor will provide services.

Comment: Qualifications to be specified include licensing requirements which must be met CLE hours, past training, previous trial experience, etc. This Guideline is adapted from previous draft standards, Guideline - Seattle, and related standards. The need to establish minimum qualifications for defense counsel in contract programs is analogous to the long-acknowledged need to do the same in assigned counsel programs.

Guideline III-8: Support Staff and Forensic Experts. The contract should provide for employment of secretaries, social work staff, mental health professionals, forensic experts and support staff to perform tasks not requiring legal credentials or experience and tasks for which support staff and forensic experts Possess special skills. Such skills are particularly important in ensuring effective performance of defense counsel at the bail, pretrial release, investigation and sentencing stages, and in the preparation of dispositional plans.

(b) Social Service Personnel. The contract-should provide an adequate number of social service personnel to assist attorneys and their clients.

(c) Mental Health Professionals. The contract should specifically include funds for confidential hiring of mental health professionals to perform evaluations and to assist at trial, unless mental health professionals are provided to the contractor to perform mental evaluations by court order or otherwise upon request.

(d) Forensic and Other Experts. The contract should specifically include funds for confidential hiring of forensic and other experts and for the use of forensic experts at trial.

Related Standards:

Comment: A defense program cannot do its job without adequate support. There is a disagreement over the wisdom of prescribing a particular number of professional and support staff in a defender office or program. This Guideline follows earlier drafts which recommend that the contract itself specify the number of support persons which the Contractor will use. For bids, Contractors should be asked to justify the numbers and professions of persons they propose to employ as full- or part-time staff.

Guideline III-9. Investigators. The contract should specify that adequate investigation services necessary to provide competent representation shall be available to the Contractor. No contract clause should interfere with the contracting attorney's selection, supervision, or direction of investigators.

Comment: There is disagreement over the wisdom of prescribing a particular number of investigators in a defender office or program. This Guideline follows Standard 15, Landon Draft. For bids, Contractors should justify the number of investigators to be hired. See: Guidelines - Seattle, Guideline 9, and California Standing Committee, par. 5, p. 5.

Guideline III-10: Compensation. The contract shall provide that the Contractor compensate:

(b) attorneys at a minimum rate which reflects the following factors:

The customary compensation in the community for similar services rendered by privately retained counsel to a paying client or by government or other publicly-paid attorneys to a public client;
the time and labor required to be spent by the attorney; and
the degree of professional ability, skill and experience called for and exercised in the performance of the services.

Related Standards:

Comment: Every observer of the criminal courts system is aware of the link between adequate compensation for defense staff and attorneys and high-quality, efficient criminal defense services. This Guideline articulates formulae for determining reasonable compensation for staff, employees, and subcontractors of the Contractor and for determining reasonable compensation for attorneys. The formulae suggested for both is reasonable and flexible, drawing upon comparisons to similarly situated persons performing comparable duties in the same community. The formulae suggested here for determining attorney compensation is applicable both to attorneys paid on a "fee per case" basis and to salaried attorneys.

With this Guideline, NLADA recommends that the Contracting Authority specify in any contract, RFP or bid document the minimum compensation which a contractor shall provide employees, staff and subcontractors, as determined by the Contracting Authority or, preferably, the Policy Board. Specified minimum rates of compensation will help insure that competitive bidding for public defense contracts will not result in a contract defense system which pays employees and attorneys at rates so low that the public's long-term interest in high-quality, vigorous defense for the poor and a defense bar of reasonably experienced, well-qualified attorneys is sacrificed. (See, generally, Spangenberg, Contract Systems.) As a less favored alternative, any contract, RFP, or bid document should at least articulate this or a similar formulae by which Contractors (and bidders in any bidding process) are to calculate and pay compensation. No contract should be awarded if it does not assure, on its face, that staff, employees, subcontractors, and attorneys will be compensated reasonably and in line with the formulae set forth in this Guideline.

Guideline III-11: Special Case Compensation. The contract should provide for reasonable compensation over and above the normal contract price for cases which require an extraordinary amount of time and preparation, including, but not limited to, capital cases. Services which require special fees should be defined in the contract.

Comment: This Guideline recognizes that there are certain cases which are outside the realm of a day-to-day criminal law practice. These cases, which impose great burdens, can seldom be predicted by the attorney or the Contracting Authority. There is no valid reason why the financial burden of such cases should fall upon the Contractor. (Comment to Recommendation 6, California Bar Subcommittee, p. 5). Contracts which do not make some provision for such cases will discourage qualified Contractors or encourage inflated contract prices by Contractors who want to protect themselves against the unforeseen financially disastrous case. At the same time contracts appeal in part because they at least appear to provide predictable costs for budgeting purposes to counties and other government units. A contract which allows for cost increases covering every unforeseen eventuality, no matter how minor, destroys the element of predictability. (See, Spangenberg, Contract Systems.) Such a contract may also appear to invite "padding" by the Contractor. One way a contract can address these conflicting concerns is to include in it a careful definition of cases or circumstances which would permit a specified increase in the contract price sufficient to cover expenses, marginal salary or fee increases and overhead which should be sufficient to avert financial disaster, but insufficient to provide financial advantage or profit to the Contractor.

Guideline III-12: Case- and Work-Overload. The contract should provide that the Contractor may decline to represent clients at no penalty in the event that during the contract:

(b) the Contractor is assigned more cases requiring an extraordinary amount of time and preparation than the Contractor can competently handle even with payment of extraordinary compensation as specified in Guideline III-11; or

(c) the cases assigned to the Contractor exceed any number that the contract specified or that the Contractor and Contracting Authority reasonably anticipated at the time the contract was concluded.

Related Standards: None.

Comment: This Guideline addresses several potential situations. The first of these is the one in which a contract specifies a limit on cases, as recommended in Guideline III-5, but the caseload exceeds that limit. The second is one in which cases are assigned to the Contractor such that the Contractor's ability to handle cases and represent clients is adversely affected even though the Contracting Authority agrees to pay extraordinary compensation as recommended in Guideline III-11. The last of these, and probably the more common, is the situation in which the contract contains no provisions as recommended in either Guidelines III-5 or III-11 or is a "requirement" contract, i.e. one in which the Contractor is required to represent all defendants unable to afford counsel in a particular courtroom or court. For each of these situations, this Guideline recommends that the Contractor be able to decline to represent clients without penalty to avoid case or work overload. Other remedies suggested to the Committee were to allow either renegotiation of the contract or cancellation by the Contractor after reasonable notice and without penalty.

Guideline III-13: Conflicts of Interest. The contract should avoid creating conflicts of interest between the Contractor or individual defense attorney and clients. Specifically:

(b) contracts should not, by their provisions or because of low fees or compensation to attorneys, induce an attorney to waive a client's rights for reasons not related to the client's best interest; and

(c) contracts should not financially penalize the Contractor or individual attorneys for withdrawing from a case which poses a conflict of interest to the attorney.

Related Standards:

Comment:

(b) This provision succinctly restates ABA Standard 4-5.1 and commentary thereto in the context of contract defense systems.

(c) This conflict occurs when a lawyer stands to lose income or must reduce an office budget if he or she withdraws from a case because of a conflict of interest with the client. People v Barboza, 29 Cal. 3d 375 (1981). The best solution in the context of contract defense is to provide for payment for services before withdrawal and/or a replacement case for the Contractor, if payment is on a per-case basis.

Guideline III-14: Payment. The contract should provide that payments to the Contractor be made monthly or at times agreed to by the parties without regard to the number of cases closed in the period.

Comment: This Guideline is intended to insulate the Contractor from sporadic payments or pressure to close cases prematurely, as noted in Recommendation 5, California Bar Subcommittee, pp. 4-5. It is not intended to prohibit a payment system or schedule which reasonably assures the Contracting Authority that the conditions of the contract, which may include acceptance of a certain number of cases over a period of time, are being met.

Guideline III-15: Financial Records. The contract shall provide that the Contractor shall retain financial records, submit financial reports, and produce an Annual financial evaluation or audit.

Comment: This Guideline is patterned after Guideline 10, Guidelines - Seattle. National standards implicitly support the concept of a defender office assuming appropriate management and accounting functions. See NSCDS Recommendation 4.1, pp. 338, 341.

Guideline III-16: Supervision and Evaluation. The contract should establish a procedure for internal systematic supervision and evaluation of the performance of the Contractor's staff based upon publicized criteria. Supervision and evaluation efforts should include monitoring of time and caseload records, review and inspection of transcripts, an evaluation of attorney case activity, in-court observations, and periodic conferences.

Related Standards:

Comment: This Guideline recommends that the contract specify a procedure for internal supervision and evaluation of professional staff. The formality of such procedures will depend upon the size of the contracting office or program.

Guideline III-17: Professional Development. The contract should provide funds and sufficient staff-time to permit systematic and comprehensive training of attorneys and professional staff. Resources for training should be no less than is provided to prosecutors and judges in the jurisdiction, and should include continuing legal education programs, attendance at local training programs, and the opportunity to review training and professional publications and tapes. Where appropriate and where the size of the contract program requires, all attorneys should be required to attend an intensive, entry-level training program.

Comment: The ABA describes training programs as "crucial to the delivery of effective defense services." History of Standard, Standard 5-1.4. All standards describe the need for training in defender programs. Training in and outside of defender programs are necessary to: (a) introduce new attorneys to defense work; (b) improve and bring current skills of experienced attorneys; and (c) introduce new legal developments, management techniques and developments in forensic services to attorneys. Training, when well conducted, is an incentive and morale booster to old and new staff. Competitive bid contract defense programs have been criticized for their failure to provide training (Wilson - Contract Bid Programs, p. 5); Contracting Authorities should regard with suspicion any contract which fails to provide adequate professional training.

Guideline III-18: Standards of Recommendation. The contract shall require that the Contractor provide defense services to all clients in a professional, skilled manner consistent with minimum standards set forth by the American Bar Association, any applicable state bar association standards, the canons of ethics for attorneys in the state of the contract, and case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. The contract shall provide that counsel under contract shall be available to eligible defendants at their request, or the request of someone acting on their behalf, beginning at questioning, arrest, formal charging, or indictment. The Contracting Authority or the Contractor, as appropriate, shall ensure that attorneys provided by the contract shall be accessible to defendants before formal court appointment.

Comment: This Guideline incorporates into the contractual relationship the obligation upon a defense attorney as defined by professional standards and canons of ethics. In particular, this Guideline requires that the contract permit early representation of eligible defendants, without which any defender system is inadequate.

Guideline III-l9: Confidentiality. The contract should prohibit the Contractor from releasing confidential attorney-client information or work product related to any case, except under a legal court order to do so, or after receiving a voluntary, knowing, and intelligent waiver from the client in the case, or to a subsequent attorney on the case.

Comment: This Guideline is derived, with modifications, from Recommendation 8, California Bar Subcommittee, p. 5. It incorporates into the contractual relationship obligations which are imposed upon attorneys as a matter of professional conduct. See ABA Code of Professional Responsibility DR4-101.

Guideline III-20: Insurance. The contract may require that the Contractor provide malpractice insurance for attorneys representing clients under terms of the contract. The contract shall not provide that the Contractor hold the government or Contracting Authority harmless for the attorney's representation of defendants.

Comment: This Guideline allows Contracting Authorities to require that contracting attorneys obtain adequate malpractice insurance. It is derived from Recommendation 4, California Bar Subcommittee, p. 4, and comment thereto and the Model Contract - North Dakota, p. 57.

Guideline III-21: Retention of Files. The contract shall provide that the Contractor provide for retention of client files in a manner that affords protection of the client's confidentiality interests (see Guideline III-17) for a specified period of time after the conclusion of the case at least equal to the period provided in rules governing all other lawyers' files in the jurisdiction but in no event less than five (5) years.

Comment: This is highly recommended as a means of protecting the Contracting Authority or local government in the event of a suit against it based upon a case handled by a Contractor or in the event that the Contracting Authority deems necessary a review of work performance under terms of the contract. It is also necessary to protect the rights of a defendant for a reasonable time after termination of a case. As one method of retaining files, a contract could provide that closed files be stored in a central warehouse or vault provided by an existing public defender program or by the local government.

Guideline III-22: Management System. The contract shall provide that the Contractor shall maintain a case reporting and management information system, data from which shall be available to, or provided to, the Contracting Authority and Policy Board. Any such system shall be maintained independently from client files so as to disclose no confidential or privileged information. The case reporting and management information system shall be used to provide the Contractor, the Contracting Authority and the Policy Board with caseload information sufficient to assure compliance with Guidelines III-3, III-5, III-14, and III-16 particularly.

Comment: This Guideline ensures that the contract shall specify, and allow sufficient resources for, a case management system which will be adequate to provide both the Contractor and Contracting Authority with budget, caseload, and performance data. A contract lacking similar provisions provides the Contracting Authority little protection against misuse of funds and leaves the Contracting Authority with little oversight capability or ability to predict future expenditure levels. It is recommended that public defense systems having more than one defense services provider attempt to develop uniform or compatible management information systems.

Guideline III-23: Duration of Representation. The contract shall specify that the Contractor has the responsibility to complete any and all cases once representation is commenced under terms of the contract. Representation commenced by the Contractor in trial court shall be continued through all trial court proceedings if provided by the contract, representation commenced by or taken to an appeals court by the Contractor shall be continued until the appeals process is terminated by an action of the appeals court which is accepted as final on the merits by defense counsel and his or her client.

Nothing in this Guideline shall prohibit a Contractor or attorney from withdrawing from a case in which a court has recognized a conflict of interest for the attorney or in which the defendant is found to be ineligible for services as defined in Guideline III-3.

Comment: This Guideline addresses the question of representation after termination of the contract (see Guideline III-4). The Guidelines already call for continuous representation of a defendant by one attorney during the life of the contract (See Comment, Guideline III-2). Continued and continuous representation after termination of the contract is at least as important. After all, termination of a legal contract is, from the point of view of a court concerned with calendaring cases, a government concerned with avoiding costly inefficiency, and a defendant concerned with adequate representation an arbitrary event. In addition, the Contracting Authority needs to know what it has purchased and would be ill-served by a system in which a Contractor could simply walk away at the end of a contract from cases for which the Contracting Authority has paid for representation. To avoid these problems, these Guidelines propose that contracts state explicitly that cases open at the termination of a contract must be handled to completion by the attorney assigned to them through the contract. Obviously, this obligation must be matched by the financial terms of the contract. One practical way to ensure orderly conclusion of representation after termination of the contract would be establishment of an escrow or trust account from which the Contractor would be paid periodically upon conclusion of all or most cases opened during the contract period.

PART IV: CONTRACTING PROCEDURES

The following Guidelines prescribe procedures by which a contract should be prepared and state the overriding consideration to be made in awarding a contract. The Guidelines in this part are particularly relevant if contracts are to be awarded through a competitive bid process.

Guideline IV-1: Role of the Contracting Authority. The Contracting Authority in consultation with the Policy Board shall prepare, issue, and receive responses to any contracts, bids, RFP's, issued in connection with contracting for indigent defense services. Such contracts, bids and RFPs should comply with these guidelines.

Comment: This Guideline states the expectation that the Contracting Authority, as defined in Guideline I-1, is principally responsible for administering any contract or contract-bid process.

Guideline IV-2: Role of the Policy Board. The Policy Board should assist the Contracting Authority in the contracting process as requested. At a minimum, the Policy Board should set minimum fees and salary levels as specified in the contract or as established after receipt of all proposals, and shall review, decided between, and recommend Contractors to the Contracting Authority.

Comment: This Guideline describes the minimum role of the Policy Board in the contracting process. In their entirety these Guidelines contemplate that the Policy Board will ensure the independence of the Contractor and provide the Contracting Authority with expertise which it may otherwise lack. (See Guideline II-1, above.) The two functions spelled out here -- setting minimum fees or salary levels and recommending potential Contractors -- should be delegated to the Policy Board in order to assure that no contract will be awarded unless it provides funds sufficient to achieve minimum standards in defense representation, and that any contract will be awarded on a fair and impartial basis.

Guideline IV-3: Awarding the Contract. The Policy Board and/or Contracting Authority should award contracts for public representation for those unable to afford counsel only when Contractors have complied with these guidelines. Under no circumstances should a contract be awarded on the basis of cost alone. The Policy Board and/or Contracting Authority shall determine whether the proposed budget of a potential contractor will provide the capability of complying with these Guidelines.

Comment: This Guideline follows in part recommendations of the Seattle-King County Bar Association, See Standards - Seattle pp. 1-2. This Guideline contemplates a formal review of any proposed contract for public defense services by the Contracting Authority with the aid and advice of the Policy Board. It is anathema to the purposes of these Guidelines to award a contract on the basis of cost alone. That is not to say that cost should not be a factor, but that other considerations, not the least of which are the long-term and hidden costs of establishing poorly organized, poorly managed, short-term, low-quality defender programs, must also be made by the Contracting Authority. (See, Spangenberg, Contract Systems.) The best, true cost comparison between contract defense programs, or between contract defense programs and other types of public defense programs, requires a comparison of each one's capability to comply with these Guidelines. Programs which do not substantially comply may be more expensive in the long run and a discredit to our ideals of equal justice for all citizens.

Bibliography of Materials Cited

Short Citations	References
ABA Standards (Standard): for Criminal Justice	American Bar Association Standards (Second Edition 1980)
California Bar Subcommittee:	"Report and Recommendation on Contract Defense Services," Subcommittee on Contract Defense Services, Standing Committee on the Delivery of Legal Services to Criminal Defendants, the Legal Services Section of the State Bar of California (April 1981)
Goldberg Draft:	"Discussion Draft, Standards for Contract Defense Systems," memorandum dated November 5, 1982 from Nancy Albert-Goldberg, with attachments
Guidelines - Seattle:	Guidelines for Accreditation of Defender Agencies, Seattle-King County Bar Association Indigent Defense Services Task Force (July 15, 1982)
Landon Draft:	"Proposed Minimum Standards for Performance and Awarding of Legal Defense Contracts," prepared by Alex Landon, Chair, Contract Subcommittee of the Defender Committee, NLADA
Model Contract - North Dakota:	"Model Contract for Counsel Services for Indigent Defendants in North Dakota," and "Model Bid Award Specifications and Procedures for Indigent Defense Service Contracts in North Dakota," North Dakota Judicial System: Indigent Defense Procedures and Guidelines, North Dakota Legal Counsel for Indigents Commission, North Dakota Supreme Court (1983), pp. 40-60
NAC Courts (Standard):	Courts, National Advisory Commission on Criminal Justice Standards and Goals (1973)
NLADA Standards (Standard):	Standards for Defense Services, National Legal Aid and Defender Association (1976)
NSCDS (Recommendation/Page);	Guidelines for Legal Defense Systems in the United States, Report of the National Study Commission on Defense Services, NLADA (1976) (Note: In the Guidelines, the National Study Commission on Defense Services set forth its recommendations twice: first, with text and comments; and second, in a summary without text and comments. Only the recommendations in the summary are numbered. We have cited each recommendation by the number given in the summary followed by the pages of text which pertain to the recommendation. The summary is found at pp. 501-521.)
RFP - Napa County:	"Request for Quotations," Board of Supervisors, Napa County, California, June 16, 1978
Spangenberg - Contract Systems:	Robert Spangenberg, A. David Davis, Patricia A. Smith, "Contract Defense Systems Under Attack," NLADA Briefcase (Fall 1982) pp. 5-18.
Wilson - Contract Bid Programs:	Richard J. Wilson, "Contract Bid Programs: A Threat to Quality Indigent Defense Services," (unpublished paper) NLADA, 1982